Property Settlements in Family Law: Case Study of Stamatou & Stamatou [2022] FedCFamC1F 241
In the legal case of Stamatou & Stamatou [2022], a property settlement was determined with a declaration that the husband's parents held the property for the benefit of the husband and wife. The court divided the property 60% to the wife and 40% to the husband based on contributions and various factors. Consideration was given to contributions, future needs, and family violence during the relationship. This case sheds light on the complexities of property settlements in family law.
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Property Settlements in Family Law Presented by Judge Bowrey OAM Presented by Judge Bowrey OAM Material provided by the Family Law Section
Property Settlements in Family Law Big Money Cases Special Contributions - Ferraro & Ferraro (1993) FLC 92-335 - Hoffman & Hoffman [2014] FamCAFC 92 - Fields & Smith [2015] FamCAFC 57 Self-managed superannuation funds Rule 6.06 (Duty of Disclosure Financial Proceedings) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Stamatou & Stamatou [2022] FedCFamC1F 241 Kennon argument
Stamatou & Stamatou Stamatou & Stamatou[2022] FedCFamC1F 241 [2022] FedCFamC1F 241 FACTS ISSUES AT FINAL HEARING Whether the Husband s parents were estopped from denying Husband and Wife an interest in the property Cohabitation 1998 or 1999, married 2012 Two children 8 and 5 Whether the Husband s parents held the property for the benefit of the Husband and Wife pursuant to an implied or a constructive trust Husband commenced proceedings Wife s Response seeks orders to join the Husband s parents as Respondents Whether the Husband s parents held the property for the benefit of the Husband and Wife pursuant to a resulting trust Wife contended that there was an agreement between herself, the Husband and his parents to purchase property for the benefit of the Husband and Wife
Stamatou & Stamatou Stamatou & Stamatou [2022] FedCFamC1F 241 [2022] FedCFamC1F 241 OUTCOME Court made declaration that Husband s parents hold the property for the benefit if the Husband and Wife Division of parties property 60% to the Wife and 40% to the Husband by reference to both s. 79(4) contributions and s.75(2) factors
Stamatou & Stamatou Stamatou & Stamatou [2022] FedCFamC1F 241 [2022] FedCFamC1F 241 Determination of issues Consideration of contributions Consideration of future needs of parties Section 79(4) contributions Section 75 (2) factors Family violence during the course of the relationship taken into account, part of Wife s adjustment overall
Corelli & Beroni (No. 2) [2022] FedCFamC1F 197 Litigation Funding
Corelli & Beroni (No. 2) Corelli & Beroni (No. 2) [2022] FedCFamC1F 197 [2022] FedCFamC1F 197 FACTS ISSUES De-facto relationship De-facto Wife deposes that she has no capacity to ongoing legal costs Commenced living together in 2010 and separated in April or May 2016. De-facto Wife is paid $1,000 / week spouse maintenance De-facto Wife had assets of approx. $18,000 and the Husband $73.18 mil at time of cohabitation Primary Judge referred to the decision by Carew J in Rigby & Kingston [2017] FamCA 877 De-facto Wife commenced proceedings in 2016 The Judge considered the prejudice to each party in making or not making the orders sought by the de facto wife In 2019 Court made orders setting aside BFA, Husband appealed and was not successful The Judge found that the Court s discretion to make an order for interim costs was not enlivened pursuant to s. 117 De-facto Wife filed further Application (s. 117) seeking dollar for dollar order or lump sum litigation order Costs
Corelli & Beroni (No. 2) Corelli & Beroni (No. 2) [2022] FedCFamC1F 197 [2022] FedCFamC1F 197 OUTCOME De-facto Wife s application for interim lump sum costs or in the alternative, a dollar for dollar costs order was dismissed.
Corelli & Beroni (No. 2) Corelli & Beroni (No. 2) [2022] FedCFamC1F 197 [2022] FedCFamC1F 197 Rigby & Kingston [2017] FamCA 877 Husband would have been forced to represent himself at trial if a litigation funding order was not made Order made for interim costs Consider parties financial positions and appropriateness of making interim order for costs Costs not granted on interim basis, to be determined at final hearing
Preston & Preston Preston & Preston [2022] FedCFamC1A 157 [2022] FedCFamC1A 157 ISSUES AT FIRST INSTANCE FACTS How the court would treat the Husband s military pension Commenced relationship in 2003 or 2004, married 2006 and The Judge counted the military pension as an asset at its capitalised value separated in 2018 The Judge considered appropriate adjustment s. 75 (2) Four children of the marriage lived with Wife and spent time APPEAL with Husband GROUNDS: Wife intended to continue to be primary carer of children 1. Error in treating pension as capitalised asset 2. Assessment of parties contributions Wife s future income like to be less than Husband s Full Court concluded that the primary judge s method meant that the pension was counted twice and further that the implication of the judgment is that the starting point for the primary judge was one of equality Husband utilising rent from investment properties, military pension and from casual work
Preston & Preston Preston & Preston [2022] FedCFamC1A 157 [2022] FedCFamC1A 157 OUTCOME Husband s appeal was allowed Full Court re-exercised discretion and made orders for division of property to be equal Husband s military pension excluded as an asset to identify the property pool
Preston & Preston Preston & Preston [2022] FedCFamC1A 157 [2022] FedCFamC1A 157 Expert opinion evidence capitalised value of military pension. Consider whether capitalised value is potentially artificial or unrealistic Consider the entirety of the parties financial and non-financial contributions according to the unique facts / circumstances of the case CONSIDER: Is either party seeking a superannuation splitting order?
Mayhew & Fairweather [2022] FedCFamC1A 53 Inadequate Disclosure
Mayhew & Mayhew & Fairweather Fairweather [2022] FedCFamC1A 53 [2022] FedCFamC1A 53 FACTS ISSUES AT FIRST INSTANCE Parties agreed on values of assets but not contributions and any adjustments pursuant to s. 75 (2) Cohabitation 1990, married 1992, separated 2014 or 2016, divorced 2017 Husband s disclosure deficient One child of the marriage (23 y/o) 60% to Wife and 40% to Husband Husband 63 y/o and Wife 71 y/o APPEAL Husband received inheritance in 2007 GROUNDS: Wife received inheritance in 2012 and 2013 (farm in NZ) 1. How defective disclosure was dealt with 2. Double counting of pension
Mayhew & Mayhew & Fairweather Fairweather [2022] FedCFamC1A 53 [2022] FedCFamC1A 53 OUTCOME Husband s appeal was allowed Matter remitted for rehearing
Mayhew & Mayhew & Fairweather Fairweather [2022] FedCFamC1A 53 [2022] FedCFamC1A 53 Disclosure obligations are of primary importance. A party cannot usually complain if court favours other party who has disclosed and/or there is doubt regarding disclosure Adding back a sum to the pool reflective of an estimate of the value of the undisclosed property Inadequate disclosure consideration - ss.75 (2) (o)
Grunseth Grunseth & & Wighton Wighton [2022] FedCFamC1A 132 [2022] FedCFamC1A 132 ISSUES AT FIRST INSTANCE FACTS Assessing appropriate division of the parties property in light of the parties relatively short relationship Parties met 2004 and commenced de-facto relationship in 2013 and purchased a property Treatment of the parties dog Roxy Wife was registered owner of Roxy Separated in October 2016 Primary Judge found that Roxy was joint de-facto property APPEAL Tenants in common 70% Wife / 30% Husband) GROUNDS: Husband received inheritance and he claims pays to Wife to become half owner of property 1. Division onerous 2. Delay in the delivery of reasons for judgment Wife said payment from Husband was not for equal share and that no percentage increase was agreed 3. Failed to make findings of family violence 4. Failed to take into account expert evidence No adjustment made on registered ownership 5. Orders made in relation to Roxy
Grunseth Grunseth & & Wighton Wighton [2022] FedCFamC1A 132 [2022] FedCFamC1A 132 OUTCOME Wife s appeal allowed in relation to the error concerning the primary judge s assessment of contributions Wife to retain Roxy the spoodle
Grunseth Grunseth & & Wighton Wighton [2022] FedCFamC1A 132 [2022] FedCFamC1A 132 Shortness of relationship suggests emphasis on what each party brought to that relationship Steinbrenner & Steinbrenner [2008] FamCAFC 193 Manifold & Alderton (2021) FLC 94-015 Delay with respect to Judgement Full Court emphasised need to consider finding of facts where primary Judge s recolection affected by time since hearing
Neales & Neales [2022] FedCFamC1A 41 Attempt to discharge Single Expert
Neales Neales & & Neales Neales [2022] FedCFamC1A 41 [2022] FedCFamC1A 41 FACTS ISSUES AT FIRST INSTANCE Primary Judge identified relevant rules with reference to decision in Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 (Kent J) Alternate opinion not sufficient to justify another expert being appointed APPEAL Husband asserts that experts adopted alternative methodology Full court satisfied that Husband would suffer substantial injustice if appeal not grated Married June 1981, separated April 2016 Husband owns 1/3 share in 3 entities (commercial properties) most subject to leases with options to renew Husband commenced proceedings in 2019 Single expert appointed (jointly) to value commercial properties Husband filed Application in a Case to discharge single expert
Neales Neales & & Neales Neales [2022] FedCFamC1A 41 [2022] FedCFamC1A 41 OUTCOME Husband s appeal allowed Primary decision set aside Cost certificates issued Husband granted leave to rely upon another expert s evidence
Neales Neales & & Neales Neales [2022] FedCFamC1A 41 [2022] FedCFamC1A 41 Appointment of single expert for valuation of property usual approach and single expert report expected to be used In this case, single expert preferred including that Husband who instructed his own expert, not accepted on criticism of single expert Valuation of property subject to a lease Court found valuer had taken lease into account
THANK YOU Presented by Judge Bowrey OAM Presented by Judge Bowrey OAM Material provided by the Family Law Section
